Vignette Publications v. Harborview

• Decision Date: 12 September 2001
• Docket Number: No. 2000-CA-1711.,2000-CA-1711.
• Parties: VIGNETTE PUBLICATIONS, INC. v. HARBORVIEW ENTERPRISES, INC., doing business as Amberjacks down under.
• Court: Court of Appeal of Louisiana — District of US

Page 531

799 So.2d 531

VIGNETTE PUBLICATIONS, INC. v. HARBORVIEW ENTERPRISES, INC., doing business as Amberjacks down under.

No. 2000-CA-1711.

Court of Appeal of Louisiana, Fourth Circuit.

September 12, 2001.

Appeal from the First City Court of New Orleans, No. 97-54586, Michelle Beaty Gullage, J F. Evans Schmidt, Denechaud & Denechaud, New Orleans, LA, Counsel for Plaintiff/Appellee.

M. Elizabeth Bowman, Gerard G. Metzger, Gerard G. Metzger (APLC), New Orleans, LA, Counsel for Defendant/Appellant.

Court composed of Chief Judge WILLIAM H. BYRNES, III, CHARLES R. JONES, and PATRICIA RIVET MURRAY, Judges.

BYRNES, Chief Judge.

Defendant, Harborview Enterprises, Inc. d/b/a Amberjacks Down Under ("Harborview") appeals the judgment in favor of the plaintiff, Vignette Publications, Inc. ("Vignette") for breach of contract. We affirm.

On April 24, 1996 Harborview's CEO/manager/owner, Dennis Scheuermann signed a written contract with Vignette for an advertisement to appear in the 1996 Second Edition of the New Orleans Vignette: The Guide to New Orleans, a hardback tourist magazine placed in hotel rooms throughout New Orleans. The contract was for an ad in the magazine for one year at the price of $6,000.00. The contract required a $500 deposit, with 11 monthly payments of $500 each. An ad ran for one year.

Harborview asserts that although the first monthly installment of the bill was due in August 1996, Vignette did not issue a statement to Harborview until eight months later for the monthly installments due. When Vignette made a demand on Harborview to pay for the ad, Harborview refused to remit payment. Vignette filed a petition on open account in Orleans First City Court on June 27, 1997, to enforce the written advertisement agreement. After a bench trial on March 29, 2000, the First City Court rendered judgment in favor of Vignette for $13,725.90 with interest thereon at the rate of 1.9 percent per month on March 30, 2000. The First City Court also awarded an additional 25 percent of the amount of principal and interest due plus court costs in the amount of $444.75. The 25 percent was the equivalent to an award for attorney's fees. The contract provided that the advertiser (Harborview) agreed to pay attorney's fees "of at least but not limited to 25 % of the unpaid balance, including any delinquency assessments." The First City Court denied Harborview's motion for new trial after a hearing on May 12, 2000, concerning the award of interest. Harborview's appeal followed.

On appeal, Harborview contends that: (1) Vignette did not provide sufficient evidence to establish that Harborview approved and authorized the advertisement; (2) Vignette was not entitled to interest on accrued interest under the written advertising contract; and (3) the award for attorney's fees was excessive.

Sufficiency of Evidence

Harborview argues that Vignette did not show by a preponderance that the advertisement was approved by Harborview.

The standard for determining the sufficiency of the evidence relates to questions of law or to mixed questions of law and fact. Harborview asserts that the manifest error rule is not the standard for determining the sufficiency of evidence underAmbrose v. New Orleans Police Depart. Ambulance Service, 93-3099 (La.7/5/94), 639 So.2d 216, and Rosell v. ESCO, 549 So.2d 840 (La.1989).

In his concurrence in Ambrose, Justice Lemmon explained:

The manifest error rule is a standard used by appellate courts to resolve conflicting factual evidence; it is not a standard for determining sufficiency of the evidence. The manifest error rule relates purely to questions of fact; sufficiency of the evidence, on the other hand, is a question of law, and the standard for determining sufficiency of the evidence relates to questions of law, or to mixed questions of law and fact.

In application, the manifest error rule becomes part of the standard for determining sufficiency of the evidence. The reviewing court first resolves any factual conflicts by application of the manifest error rule which dictates that the appellate court should not disturb the express or implied factual findings of the trier of fact. [Footnote omitted.] Accordingly, the reviewing court views all evidence in the light most favorable to the party who prevailed in the trial court, and then determines whether the evidence, consisting of the undisputed facts and of the disputed facts thus viewed under the manifest error rules, was sufficient to preponderate in favor of a conclusion that the plaintiff had proved every element of his cause of action. [Emphasis added.]

Id. 639 So.2d at 223-24.

Rosell v. ESCO, supra, provides the same manifest error, clearly wrong standard of review of the credibility of witnesses and disputed facts.

In the present case, the parties provide conflicting testimony as to whether the advertiser, Harborview, approved the final copy before the advertisement was printed in Vignette's hardback magazine. Where the facts are disputed, the manifest error standard applies.

The burden of proof in an action for breach of contract is on the party claiming rights under the contract. Phillips v. Insilco Sports Network, Inc., 429 So.2d 447, 449 (La.App. 4 Cir.1983). The existence of the contract and its terms must be proved by a preponderance of the evidence. Bond v. Allemand, 632 So.2d 326 (La.App. 1 Cir.1993). A contract is formed by the consent of the parties established through an offer and acceptance; the offer and acceptance may be verbal unless the law prescribes the requirement of writing. State v. Louis, 94-0761 (La.11/30/94), 645 So.2d 1144. The offer and acceptance, such as is required to support a contract, may be made orally, in writing, or through actions or inactions clearly indicative of consent. La. C.C. art. 1927; Mitchell v. Fradella, 628 So.2d 1198 (La.App. 3 Cir.1993). The trial judge is given discretion to determine if consent to an agreement may be implied from the particular circumstances of each case. McDermott, Inc. (Harvey Supply Div.) v. M—Elec. & Const. Co., Inc., 496 So.2d 1105 (La.App. 4 Cir.1986).

The written contract in the present case did not set out the requirement of written pre-approval of the advertisement by Harborview. Vignette's witnesses agreed that it was standard operating procedure that any advertisement in the magazine was subject to pre-approval by the advertiser. The parties' stipulation acknowledged the contract and signatures, as well as the fact that photographs were taken. At issue is whether Vignette proved that Harborview's agent saw and approved the final ad before its publication.

Scheuermann testified that he saw the first photographs but did not approve the photos and text to be used in the magazine. Harborview maintains that its manager, Scheuermann, would not have approved the ad because it reflected an emphasis on live entertainment and music, which were not presented by Harborview's restaurant. The live entertainment and music were provided by Amberjacks, a nightclub operated by a separate business corporation. Harborview claims that the advertisement in the restaurant section of Vignette's hardback magazine would have featured its seafood cuisine rather than an ad promoting live entertainment featured by its neighbor, Amberjacks nightclub.

In the ad, the words "New Orleans Best Live Music" are emphasized. The restaurant is listed with one phone number and the lounge is listed with another phone number. The ad refers to the Lakefront Marina. One picture shows fish swimming and the other picture has a display of an array of food in various dishes. The wording in Vignette's ad combines an advertisement for the restaurant and the lounge, just as the name "Amberjacks Down Under" combines the two businesses to appear as one establishment. Gayle Gelpi Landrum testified that Scheuermann provided the "Amberjacks Down Under" logo, and Harborview did not contest that testimony.

Harborview contends that Vignette's editor and president, Andrew P. Calhoun, had no personal knowledge as to whether Harborview approved the final ad. Harborview submits that Gayle Gelpi Landrum, Vignette's account executive handling the ad, did not remember a specific date of when Scheuermann approved the ad proof, and she had no specific independent recollection of Scheuermann's approval.

In her deposition, Gayle Gelpi Landrum, Vignette's agent, testified that she had a photo shoot at Amberjacks Down Under which included pictures of the "underwater scene" in the lounge and various dishes cooked by the chef in the restaurant. As previously noted, Landrum related that Scheuermann provided the "Amberjacks Down Under" logo. She stated that Scheuermann approved the ad, and Vignette ran the ad after he approved it. Landrum explained that she submitted the ad to Scheuermann, and the ad would not have run had he not approved it. Andrew Pete Calhoun, Vignette's president, also testified that it was standard operating procedure to have the advertiser's approval before an advertisement was printed in Vignette's publication. While the ad appeared in Vignette's publication for one year, Harborview did not protest that the advertisement was incorrect or defective.

Harborview maintains that Vignette did not bill Harborview for eight months until February 1997, although the contract provides that: "BALANCE DUE in 11 Monthly Payments of $500 each on the 1st of each month after publication." This does not show that Harborview did not approve of Vignette's advertisement. Both Harborview's restaurant and Amberjack's lounge had the same address. Vignette introduced into evidence a memorandum from an employee "Trish" Polite, who noted that "Sally from Amberjacks" called, demanding to know about a $500 invoice Amberjacks received. Sally knew nothing about the contract or the bill, and Trish told Sally she would fax Sally a copy of the contract. Trish left Sally's phone number and asked "John" [John Calhoun, son...